Class Counsel Blog

Spokeo, Inc. v. Robins: A Well Executed Punt?

On Friday, the Supreme Court came out with its long awaited decision in Spokeo, Inc. v. Robins. In a nutshell, the Court really decided little: it vacated the previous 9th Circuit decision and remanded the case back to that court for further consideration. In some quarters, that would be called a “punt.”

Nevertheless, perhaps the result can be summarized at best as a tie for defendants – the Court was clear that the mere allegation of the violation of a statute that contains a monetary penalty would not support standing. But at worst for defendants the decision clearly leaves the door open for claims that involve only a statutory violation and penalty can proceed where there is some sort of undefined link between the penalty and some tangible or intangible harm. Read More ›

Tyson Foods v. Bouaphakeo: A Retreat From Dukes or Just a Spoliation Case?

In March, the Supreme Court decided Tyson Foods v. Bouaphakeo,a much watched case involving the propriety of class certification.

Since the landmark decision in Wal-Mart v. Dukes, lower courts have found ways of restricting the applicability of Dukes and Comcast  v. Behrend in ways to find certification despite the apparent suggestion in Dukes that certification was limited and the notion of trial by formula was discredited. (See our October 2014 post.) Many commentators, including me, thought that Tyson would provide the opportunity for the Court to restrain these lower court interpretations. (See our blog posts of June 2015 and November 2015.) Read More ›

Supreme Court Issues Final Word on Whether Unaccepted Rule 68 Offers of Judgment Moot Putative Class Actions… Or Does It?

Yesterday, the Supreme Court issued a decision in which it held that an unaccepted Rule 68 offer of judgment made to the named plaintiff in a putative class action does not moot the case.  In doing so, the Court seemingly put an end to what was a contentious class action issue—an issue that this blog has followed closely.  Interestingly, however, the Court chose not to decide whether a Rule 68 offer could moot a case if accompanied by a payment in the amount of that offer. Read More ›

Monthly Vodka Purchases Do Not Give Rise to Various Class and Individual Claims

The United States District Court for the Southern District of Ohio recently ruled
against a monthly purchaser of vodka who brought suit on behalf of herself and
class members on several claims, including class claims under the Ohio Consumer
Sales Practices Act and the Ohio Deceptive Trade Practices Act.   Read More ›

Court Certifies Class Action of ATM Users After Sixth Circuit Faults Use Of Business Records Hearsay Exception For Summary Judgment

    The consolidated lawsuit In re Wal-Mart ATM Fee Notice Litigation, No. 2:11-md-02234 (W.D. Tenn.), was filed in 2011 based upon allegations that certain Wal-Mart stores failed to post adequate external fee notices on ATMs located on those store premises. Plaintiffs filed a motion for class certification in February 2013, and the Court granted summary judgment against the six named Plaintiffs on their individual claims in April 2014. On appeal, the Sixth Circuit reversed and remanded because the defendants had failed to authenticate the business records that they relied upon to support summary judgment. Read More ›

Tyson and the Supreme Court: Much Ado About Nothing?

There is an old maxim in appellate law that higher courts typically look for ways to decide cases on the narrowest of grounds rather than go out of their way to make sweeping changes in the law. That rule certainly seemed in place at the Supreme Court on Tuesday. In the oral argument in the much anticipated Tyson Foods v. Bouaphakeo case, the Court focused not on the broad class action issues that many had hoped, but upon the more narrow issue of representative proof in wage and hour cases. Such proof was validated by the Court some 69 years ago in Anderson v. Mount Clements Pottery Co. 328 U.S. 680 (1946). Read More ›

O’ Standing, Where Art Thou? Robins v. Spokeo Oral Argument

The Supreme Court yesterday heard arguments in Robins v. Spokeo Inc., a key case dealing with standing based solely on statutory violations as opposed to direct harm. Based on the questioning and comments of the justices in this and in another case under a similar statutory scheme, the Court may very well be on the cusp of finding that statutory violations without more no longer supply standing. Read More ›

The Erosion of the Law: Let’s Just Certify a Class...Any Class

“The truth isn't a thing of fact, or reason. It's simply what everyone agrees on.”

- The Wizard in Wicked

In the rush to adopt and simplify class action law by searching for any common issue to certify, more and more courts ignore long-held substantive legal concepts and principles.

On the first day of my first class in law school – which is more years ago than I like to think – I was greeted with a single and clear cut notion: the tort (or claim) of negligence had three necessary elements:

  • The existence of a duty
  • The breach of that duty and
  • Damages caused by the breach.
Read More ›

Southern District of Ohio Rejects Attempt to Moot Putative Class Action By Using a Rule 68 Offer of Judgment.

The Southern District of Ohio recently weighed in on a currently contentious class
action issue: whether a Rule 68 Offer of Judgment made to the named plaintiff
in a putative class action, prior to the filing of a motion for certification,
makes the entire case moot and non-justiciable.  In a departure from the recent trend within the Sixth Circuit, the court concluded that such an offer does not moot the case. Read More ›

Opening the Rule 23 Floodgates Redoux: Did Plaintiffs Just Hit the Data Breach Bulls-Eye?

In a short but very sweet ruling for the financial institutions suing Target to recover costs associated with mitigating the gigantic data breach suffered by Target in late 2013, Judge Magnuson certified the financial institutions class on Tuesday September 15.

The litigation of which we have previously written on a couple of occasions (see At Risk: Community Banks and the Recovery of Losses Due to Merchant Data Breach and Opening the Rule 23 Floodgates: Did Plaintiffs just hit the Data Breach Bulls-Eye?) stems from a data breach that impacted more than 100 million customers and cost the financial institutions over 30 million in losses primarily due to the reissuance of some 25,000 debit and credit cards. Read More ›

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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.